Sabarimala: Non-believer has no biz to challenge customs, says judge

NEW DELHI: Justice B V Nagarathna, part of the CJI Surya Kant-led nine-judge Supreme Court bench hearing the core issue of 'fundamental rights vs faith and belief', on Tuesday observed that a person who doesn't believe in a religion and its religious practices had no right to file petitions challenging their validity.

As senior advocate V Giri, appearing for Sabarimala Ayyappa Thanthri, argued that no devotee can act in derogation of practices attached to 'Naishtik Brahmachari' (eternal celibacy) attributes of Lord Ayyappa, she said, "A non-believer has no business to question customs or beliefs associated with a temple and its deity."

Justice Bagchi: Sacrosanct practices prohibit debate?

Justice B V Nagarathna said why should the court, once it has distinguished a religious practice from secular activities of a regular institution, delve into whether the practice in question is an essential part of religion or religious denomination, thus disagreeing with the 2018 SC judgment that struck down the custom barring entry of women in the 10-50 year age group into the Sabarimala temple, terming it as not an essential religious practice.

Senior advocate Gopal Subramanium agreed with Justice Nagarathna and said that while secular practices of a religious institution are amenable to judicial scrutiny, religious practices enjoyed constitutional protection, except when they are in breach of public order, morality or health.

Justice Ahsanuddin Amanullah said that whether a practice was secular or religious would have to be determined by the court on a case-by-case basis. Justice P B Varale asked, “Would it mean that with advancement in technology and spread of education, the community collectively cannot change or reform a particular religious practice?”

The question was supplemented by Justice Joymalya Bagchi, who asked, “If a religious practice is unique to a denomination and is held sacrosanct, will it prohibit debate within the community to bring about changes in the practice?”

Giri said, “A person goes to a temple to worship if he has belief and faith in the deity. If he goes to a temple to worship the deity, he cannot object or question the customs and beliefs attached to the deity worshipped by the community, which alone can bring about changes in the customs.”

Justice R Mahadevan said, “Faith is faith. Practice is different, yet it is based on faith.”

Appearing for a religious association, senior advocate J Sai Deepak said the majority verdict in the Sabarimala case erred by equating the ban on the entry of women of menstrual age into the temple because of the unique attributes of Ayyappam with the practice of ‘untouchability’. He said that when the Constitution, through Article 17, abolished untouchability and made it a penal offence, it had only social or caste-based untouchability in mind and not ritualistic purity.

Deepak further argued that diverse religious spaces dedicated to specific forms of deities, which result in restricting access to believers of a certain class or section or group without reference to caste, cannot be treated as attracting the prohibition of Article 17.






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